Published December 8, 2021
The only honest man at the poker table is a sucker. This is why some conservatives are having doubts about originalism, the judicial philosophy developed and championed by the likes of Robert Bork, the late Justice Antonin Scalia, and current senior Justice Clarence Thomas. Originalism argues that the Constitution should be understood according to its original public meaning, and has been widely embraced on the right.
But rank-and-file conservatives are afraid their legal leadership has been exploiting them. The Dobbs v. Jackson Women’s Health Organization case, in which the Supreme Court is considering a direct challenge to Roe v. Wade and the Planned Parenthood v. Casey decision that affirmed it, could bring grassroots conservatives back into the originalist fold, or it could ignite a civil war that would destroy the conservative legal movement.
This makes no sense to some. In an exchange with the prolific libertarian legal scholar Josh Blackman, Stephen Sachs of Harvard Law school wondered, “If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”
This question seems reasonable, but it raises the question of why, even after careful screening, there seem to be so many lousy originalists, especially on hot-button cultural issues. Social conservatives in particular fear that originalism is being used as cover for a conservative legal establishment that is stacking the deck against us.
The allure of originalism is that it promises victory with integrity. Conservatives thought that with originalism they could support the rule of law and beat back the left’s abuse of judicial power, of which the invention of a right to abortion is the leading example.
Support for Originalism In Doubt
Because originalism demands that Roe be overturned, pro-lifers have enthusiastically supported originalist nominees, and voted for the Republican politicians who nominate and confirm originalists. This will be vindicated if the originalist justices do their duty and overturn Roe, but many conservatives are concerned there are too many imposters and cowards among the originalist ranks.
Indeed, the language of originalism itself has allowed many aspiring judges to avoid taking a position on Roe. GOP nominees have been able to mollify abortion-supporting senators by statements of fact about Roe being a precedent while winning the support of abortion opponents by espousing an originalist jurisprudence that would require overturning such an egregiously wrong precedent. Now it’s time for everyone to show his cards.
Conservatives are concerned that we were the ones getting played. We have suffered betrayals already, such as the Bostock decision, which interpreted sex to include sexual orientation or gender identity. But we have endured in hopes of winning on abortion. If that prospect fails, then many will conclude that originalism is insufficient to force judicial nominees to nail their colors to the mast. And conservatives may decide that the originalist movement is so corrupt or incompetent as to be unsalvageable.
Right-wing criticisms of originalism are not new. If the critics are gaining ground, it is due less to new arguments than to new circumstances. In particular, the disconnect between the conservative legal movement’s elites and its rank-and-file members has forced its way to the forefront.
The two groups often have very different cultures and priorities. Subjects such as Chevron deference are dear to the hearts of the legal elites of the originalist movement, but while they might bring in dollars from big donors, they do not get voters to the polls. The base turns out for abortion, not administrative law.
Why Originalists Go Bad
There are, of course, many dedicated pro-lifers, such as Ed Whelan and Carrie Severino, among the originalist elite. But those at the pinnacle of the conservative legal movement, especially in Big Law and academia, often live in a different world than the movement’s foot soldiers.
This disconnect is at the heart of why good originalists go bad. Although a few may have always been insincere, many more are slowly swayed toward the opinions of the elite legal and cultural establishments around them. It is human nature to want to be liked by those around us, and to drift toward their views. In the circles that federal judges and top legal scholars tend to move in, social conservatism is despised.
Thus, there is often a defensiveness about deciding cases in favor of social conservative outcomes, and an inclination to find a way to avoid them, even when the law and Constitution clearly support them. Those who live and work among the pro-abortion ethos of our cultural elite also have a skewed perspective on how these decisions affect the Court’s reputation and legitimacy.
The social milieu in which the justices spend their days may make it seem that the nation is of one, pro-Roe mind, and abortion proponents exploit this. They realize that Roe and Casey are legally indefensible, so they are doing their best to intimidate the court into upholding them.
Just Follow the Constitution
Under this onslaught, some justices may be tempted to try to play an incremental game. But though upholding the Mississippi law at issue in Dobbs without overturning Roe and Casey might seem attractive, it would be legally untenable and strategically foolish. If the balance of the Supreme Court shifted back toward the left, the chance to end Roe could be lost for another generation or more. And if the court stayed the same, or moved further right, there would still be little to gain, and many lives to lose, by delaying Roe’s demise.
Such a can-kicking approach would blow up the conservative legal movement almost as surely as striking down the Mississippi law would. The sense that we have been played for fools by originalist elites would ignite a war on the right that would make the tumults of the Tea Party and the Donald Trump takeover look like a kindergarten pillow fight. And the belief that the oligarchy will do anything to thwart democratic attempts to restrict abortion might push some activists to more drastic approaches.
This crisis can easily be avoided. All that originalists need do to preserve their position of power in the conservative movement is to deliver on their promises. If they follow the law and Constitution as written, then challengers to originalism, such as common-good constitutionalism, will shuffle back to the fringes.
But if conservative legal elites break their word, then all hell will break loose.
Nathanael Blake is a senior contributor to The Federalist and a postdoctoral fellow at the Ethics and Public Policy Center.